Opinion
B297700
04-16-2020
THE PEOPLE, Plaintiff and Respondent, v. LIONEL MOLINA, Defendant and Appellant.
Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA082249) APPEAL from an order of the Superior Court of Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed. Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Lionel Molina pled no contest to voluntary manslaughter and other offenses in 2010. In 2019, he petitioned for resentencing pursuant to Penal Code section 1170.95. The superior court summarily denied the petition. Molina appeals, contending that he was entitled to have counsel appointed; voluntary manslaughter is an offense eligible for resentencing under section 1170.95; and the court erroneously relied upon the People's assertions, rather than evidence, in making its ruling. We affirm the order.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We glean the facts from the preliminary hearing transcript.
On the morning of May 31, 2009, Molina and two accomplices attempted a home invasion robbery. They entered the home, attacked the three occupants, and threatened to shoot and stab them if they failed to hand over money or drugs. One of the home's occupants managed to retrieve a firearm and shot and killed one of Molina's accomplices.
In February 2010, after a preliminary hearing, Molina was charged with murder (§ 187, subd. (a)), three counts of attempted home invasion robbery (§§ 664, 211), and two counts of conspiracy. (§ 182, subd. (a)(1)).
As appellant requests, we take judicial notice of the information, the preliminary hearing transcript, and a minute order dated August 9, 2010, in the trial court record. (Evid. Code, §§ 452, subd. (d), 459.)
On August 9, 2010, Molina pled nolo contendere to voluntary manslaughter (§ 192, subd. (a)) and three counts of attempted first degree robbery. The murder charge and the two conspiracy counts were dismissed pursuant to section 1385. The trial court sentenced Molina to a term of 14 years in prison. It imposed various fines and fees, and ordered direct victim restitution.
On January 29, 2019, after passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), Molina filed a petition for resentencing under section 1170.95. In that petition, he checked a box stating that he had pled guilty or no contest to "1st or 2nd degree murder." He also checked a box stating, "I request that this court appoint counsel for me during this re-sentencing process." Attorney Vincent Oliver, who had represented Molina during the pretrial and plea proceedings, thereafter applied to be appointed as Molina's counsel.
On February 4, 2019, the court considered the petition. Molina was not present, but attorney Oliver appeared on his behalf. Based on its "preliminary review" of the petition, the court ordered the People to file a response. The court's minute order states, "The bar panel office is appointed to represent the petitioner."
In their response, the People argued that Molina was ineligible for relief because he had been convicted of voluntary manslaughter, not murder, and section 1170.95 was unconstitutional. The People served a copy of the response on attorney Oliver.
The court ruled on the petition at an April 2, 2019 hearing. Molina was not present, but attorney Wendy Peterson appeared for Molina on Oliver's behalf. Addressing the appointment of counsel, the trial court explained it had never actually granted attorney Oliver's appointment request.
The court then denied the petition. It explained that Molina had stated in the petition that he had pled guilty or no contest to murder, but "[t]hat is absolutely positively a thousand percent incorrect or not true. He never pled guilty to first or second degree murder. Mr. Molina pled guilty to voluntary manslaughter, amongst many other sections of the Penal Code. [¶] So, from the court's perspective, if the court had been in receipt of the entire file and not having to rely solely on the defendant's petition, the court would have summarily denied the defendant's petition because the defendant's . . . negotiated plea does not come within the purview of [section] 1170.95 . . . . [¶] So on today's date, the court has taken the appropriate action to summarily deny the defendant's petition."
Molina timely appealed.
DISCUSSION
Molina contends the court's order must be reversed because (1) it erred by summarily denying the petition without appointing counsel for him; (2) contrary to the court's ruling, voluntary manslaughter is an offense eligible for resentencing under section 1170.95; and (3) in making its ruling, the court simply relied upon the People's assertions rather than examining evidence.
1. Senate Bill 1437
Senate Bill 1437 was enacted to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant of the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) "Senate Bill No. 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice and by amending section 189 to state that a person can only be liable for felony murder if (1) the 'person was the actual killer'; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the 'person was a major participant in the underlying felony and acted with reckless indifference to human life.' (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)" (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted March 18, 2020, S260410 (Cornelius); People v. Verdugo (2020) 44 Cal.App.5th 320, 326, review granted March 18, 2020, S260493 (Verdugo).)
Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for vacation of their convictions and resentencing. Section 1170.95 requires that the petition be filed in the sentencing court, and must include the petitioner's declaration showing eligibility, the case number, the year of conviction, and any request for counsel. (§ 1170.95, subd. (b); Verdugo, supra, 44 Cal.App.5th at p. 327, review granted.) Subdivision (c) of the statute lists the next steps in the petition process thusly: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor['s] response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
Verdugo recently clarified the parameters of the statutory scheme, explaining that a court's evaluation of a section 1170.95 petition requires a multi-step process: an initial review to determine the facial sufficiency of the petition; a prebriefing, "first prima facie review" to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is eligible for relief. (Verdugo, supra, 44 Cal.App.5th at pp. 328-330, review granted.)
In its initial review, the court determines whether any of the information required by section 1170.95, subdivision (b)(1) to be included in the petition is missing and cannot readily be ascertained by the court. If so, the court may deny the petition without prejudice to the filing of another petition containing the requisite information. (§ 1170.95, subd. (b)(2); Verdugo, supra, 44 Cal.App.5th at pp. 327-328, review granted.) "This initial review thus determines the facial sufficiency of the petition." (Verdugo, at p. 328.)
The next step, a prebriefing "first prima facie review," is a "preliminary review of statutory eligibility for resentencing," akin to the procedure employed in a Proposition 47 or Proposition 36 context. (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) The court must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief, i.e., whether he was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under the natural and probable consequences doctrine or a felony murder theory. (Id. at pp. 329-330.) "Based on a threshold review of these documents, the court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder." (Id. at p. 330.) In making this determination, the court may review, inter alia, the complaint, the information or indictment, the verdict form or the documentation for a negotiated plea, and the abstract of judgment. (Id. at pp. 329-330.) "The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Id. at p. 329.)
Proposition 36, the Three Strikes Reform Act of 2012; Proposition 47, the Safe Neighborhoods and Schools Act.
"Because the court is only evaluating whether there is a prima facie showing the petitioner falls within the provisions of the statute, . . . if the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction," evaluation of the petition proceeds to the "second prima facie review," in which "the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at p. 328, review granted.) In this second prima facie evaluation, the court employs the familiar standard for issuance of an order to show cause in a habeas corpus proceeding. That is, the court must take petitioner's factual allegations as true and make a preliminary assessment regarding whether he or she would be entitled to relief if the factual allegations were proved. (Id. at p. 328.)
After such an order to show cause issues, absent a waiver and stipulation by the parties, the trial court must hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously . . . sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) At that hearing, the prosecution has the burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. Both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).)
2. Molina was not entitled to appointed counsel
Molina contends that the superior court was required to appoint counsel for him before summarily denying the petition. Our colleagues in Divisions One, Six, and Seven have rejected similar arguments. (Verdugo, supra, 44 Cal.App.5th at pp. 332-333, review granted; Cornelius, supra, 44 Cal.App.5th at p. 58, review granted [rejecting contention that trial court was statutorily required to appoint counsel once petitioner alleged he satisfied filing requirements, regardless of whether the petition's allegations were accurate]; People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted March 18, 2020, S260598 (Lewis).) Our Supreme Court is currently considering when the right to appointed counsel arises under section 1170.95, subdivision (c). (Lewis, supra, S260598; Verdugo, supra, S260493; Cornelius, supra, S260410.) Pending further guidance from our Supreme Court, we agree with Verdugo, Cornelius, and Lewis.
As noted, the superior court's minute order stated that counsel was to be appointed, and an attorney ostensibly appeared for Molina at the April 2, 2019 hearing at which the petition was summarily denied. However, the court's comments at that hearing make clear it did not actually intend to appoint counsel. Although counsel was technically present, given the court's comments, it is not clear whether counsel was, for practical purposes, actively representing Molina. Therefore, we proceed as if counsel had not been appointed.
Molina urges that the plain statutory language of section 1170.95, stating that counsel "shall" be appointed, requires appointment of an attorney upon request, prior to the court's determination of whether a prima facie case for relief has been stated. We agree the statutory language is mandatory, but the pertinent question is when such appointment is required.
As Verdugo explained: "The first sentence of section 1170.95, subdivision (c), directs the court to review the petition and determine if the petitioner has made the requisite prima facie showing. The second sentence provides, if the petitioner has requested counsel, the court must appoint counsel to represent him or her. The third sentence requires the prosecutor to file and serve a response to the petition within 60 days of service of the petition and permits the petitioner to file a reply to the response. The structure and grammar of this subdivision indicate the Legislature intended to create a chronological sequence: first, a prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by the parties. [Citations.]" (Verdugo, supra, 44 Cal.App.5th at p. 332, review granted.) "Nor would it make sense as a practical matter to appoint counsel earlier in the process since counsel's first task is to reply to the prosecutor's response to the petition. If . . . the court concludes the petitioner has failed to make the initial prima facie showing required by subdivision (c), counsel need not be appointed. Of course, if the petitioner appeals the superior court's summary denial of a resentencing petition, appointed counsel on appeal can argue the court erred in concluding his or her client was ineligible for relief as a matter of law." (Id. pp. 332-333.)
Lewis came to the same conclusion: "Given the overall structure of the statute, we construe the requirement to appoint counsel as arising in accordance with the sequence of actions described in section 1170.95 subdivision (c); that is, after the court determines that the petitioner has made a prima facie showing that petitioner 'falls within the provisions' of the statute, and before the submission of written briefs and the court's determination whether petitioner has made 'a prima facie showing that he or she is entitled to relief.' (§ 1170.95, subd. (c).) . . . . [T]he trial court's duty to appoint counsel does not arise unless and until the court makes the threshold determination that petitioner 'falls within the provisions' of the statute." (Lewis, supra, 43 Cal.App.5th at p. 1140, internal fn. omitted, review granted; see Cornelius, supra, 44 Cal.App.5th at p. 58, review granted.)
Reading the law as Molina suggests would lead to anomalous results. " 'It would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief. For example, if the petition contains sufficient summary allegations that would entitle the petitioner to relief, but a review of the court file shows the petitioner was convicted of murder without instruction or argument based on the felony murder rule or [the natural and probable consequences doctrine], . . . it would be entirely appropriate to summarily deny the petition based on petitioner's failure to establish even a prima facie basis of eligibility for resentencing.' " (Lewis, supra, 43 Cal.App.5th at p. 1138, review granted, citing Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23-150 to 23-151.)
Here, for all practical purposes, the superior court summarily denied the petition at the "first prima facie review stage," based on its finding that Molina is ineligible as a matter of law. Although the court ordered briefing from the People, it erroneously did so only because it credited Molina's incorrect assertion that he had been convicted of murder. Accordingly, the appointment of counsel was not statutorily required by section 1170.95. (Verdugo, supra, 44 Cal.App.5th at pp. 332-333, review granted; Lewis, supra, 43 Cal.App.5th at p. 1140, review granted ["Because the trial court denied defendant's petition based upon his failure to make a prima facie showing that the statute applies to his murder conviction, defendant was not entitled to the appointment of counsel."]; Cornelius, supra, 44 Cal.App.5th at p. 58, review granted.)
Molina further contends that the first prima facie evaluation of his petition amounted to a critical stage of the proceedings, at which he had a constitutional right to counsel under the state constitution and the Sixth Amendment. Under both the state and federal constitutions, a defendant has a right to counsel at all critical stages of the proceedings. (U.S. Const., 6th Amend.; Cal. Const., art I, § 15; Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1004-1005; People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Rouse (2016) 245 Cal.App.4th 292, 296-297 (Rouse).) Critical stages are those "events or proceedings in which the accused is brought in confrontation with the state, where potential substantial prejudice to the accused's rights inheres in the confrontation, and where counsel's assistance can help to avoid that prejudice." (Gardner, at pp. 1004-1005; Rouse, at p. 297 [" ' "[T]he essence of a 'critical stage' is . . . the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel." ' "].) Thus, arraignments, preliminary hearings, postindictment lineups and interrogations, plea negotiations, and sentencing are all critical stages. (Gardner, at p. 1005; Rouse, at p. 297.)
Some examples are instructive. In the context of Proposition 47, once a defendant has "passed the eligibility stage" and has been found eligible for resentencing, he or she has the right to counsel; such a proceeding is "akin to a plenary sentencing hearing" and is therefore a critical stage of the proceeding. (Rouse, supra, 245 Cal.App.4th at pp. 299-300.) Where a threshold eligibility determination under Proposition 47 turns on a disputed factual issue—i.e., the value of stolen property—a defendant has a Sixth Amendment right to be present. (People v. Simms (2018) 23 Cal.App.5th 987, 996-998.) However, in "many cases, the threshold issue of eligibility for relief under [Proposition 47's resentencing provision] may be determined as a matter of law from the uncontested allegations of the petition or from the record of conviction." (Simms, at p. 993; see also People v. Fedalizo (2016) 246 Cal.App.4th 98, 109 [threshold eligibility determination under Proposition 47, i.e., whether the crime qualifies for reduction and whether defendant has suffered a disqualifying conviction, "typically can be made without a hearing because eligibility is often obvious on the incontrovertible written record"].) And, in a somewhat different context, it has been held that a defendant is entitled, as a matter of fairness, to be present with counsel when, on remand, a trial court exercises its discretion whether to strike enhancements in light of statutory amendments. (People v. Rocha (2019) 32 Cal.App.5th 352, 359.)
Considering the foregoing, it is clear the first, prebriefing prima facie review is not a critical stage of the proceedings. At that point, the court is simply tasked with determining whether there is a prima facie showing the defendant falls within the provisions of the statute as a matter of law, making all factual inferences in the defendant's favor. (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) This initial prima facie review is not an adversarial proceeding. It is not akin to a sentencing hearing. The court does not rule on disputed issues of fact; it must make all factual inferences in favor of the petitioner. (Id. at p. 329.) It does not, for example, consider evidence related to the determination of whether defendant was a major participant in the crime who acted with reckless indifference. And, it is not called upon to exercise its discretion in any respect.
Here, the People below filed a brief at the court's direction, but that was only because the court erroneously took Molina at his word when he stated he had been convicted of murder. The court thereafter stated that the matter "shouldn't be on calendar" and made clear that its ruling was a summary denial of the petition.
Nor do we detect any possibility that counsel's absence could prejudice a petitioner in a significant way, or that counsel's presence at this stage is necessary to preserve his or her rights. The instant case provides an apt illustration of why this is so. The court's ruling turned on one simple, easily ascertainable, and undisputed fact: the nature of Molina's conviction. It is unclear how appointed counsel could have assisted Molina in any meaningful way. Molina is ineligible as a matter of law, pure and simple; counsel's representation could have done nothing to change that fact. Counsel could, of course, have argued—as appellate counsel does here—that section 1170.95 encompasses voluntary manslaughter. But, as we explain post, this is incorrect, and such an argument would not have assisted him.
Molina's due process argument fares no better. He maintains that counsel was necessary to "ensure fairness" and "avoid potential prejudice." For the reasons we have discussed, this is not the case. Further, he asserts that Senate Bill 1437 gave him a liberty interest "in having counsel appointed," of which he could not be deprived without due process. He asserts, "When state law gives a criminal defendant the expectation of receiving a certain right or benefit, the denial of that right may have the additional effect of violating federal due process." Molina is categorically ineligible, as we explain post. Therefore, it follows ipso facto that he could have had no liberty interest in the appointment of counsel, and could have had no expectation that counsel would be appointed for him.
2. Section 1170.95 does not encompass voluntary manslaughter
Molina next argues that the trial court incorrectly concluded he was ineligible for resentencing as a matter of law because "a plea of guilty to manslaughter to avoid a murder conviction comes within the purview of Penal Code section 1170.95." He is incorrect.
In any case involving statutory interpretation, our fundamental task is to determine the Legislature's intent, so as to effectuate the law's purpose. We begin with an examination of the statute's words, giving them their usual and ordinary meaning, because they generally provide the most reliable indicator of legislative intent. (People v. Colbert (2019) 6 Cal.5th 596, 603; People v. Ruiz (2018) 4 Cal.5th 1100, 1105-1106; In re C.H. (2011) 53 Cal.4th 94, 100.) If not ambiguous, the plain meaning of the statutory language controls, and we need go no further. (Colbert, at p. 603; Ruiz, at p. 1106; In re C.H., at p. 100.)
Section 1170.95, provides in pertinent part: "A person convicted of felony murder or murder under a natural and probable consequences theory" may file a petition "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." The statutory language could hardly be clearer. To be eligible for relief after conviction by plea, the petitioner must have been charged with murder in a fashion that allowed the prosecution to employ a natural and probable consequences or felony murder theory, and must have been convicted of murder.
Molina points to subdivision (a)(2) of section 1170.95, i.e., "The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. (Italics added.) He argues, in regard to the italicized portion: "[i]f eligibility for resentencing were limited to persons convicted of first or second degree murder, then the latter portion of [subdivision (a)(2)] would be superfluous and meaningless." Not so. The second half of subdivision (a)(2) is not superfluous: it serves to ensure that persons who have been convicted of murder by plea, as well as by trial, are eligible to petition. Molina's argument would have us ignore the text of subdivision (a), which expressly requires that the petitioner have been convicted of murder: only a person "convicted of felony murder or murder under a natural and probable consequences theory" may petition. (§ 1170.95, subd. (a).) We are not at liberty to interpret the statute so as to excise portions of it. We "may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does. 'Our office . . . "is simply to ascertain and declare" what is in the relevant statutes, "not to insert what has been omitted, or to omit what has been inserted." ' " (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545; People v. Yanez (2020) 44 Cal.App.5th 452, 458-459.) Nor may we sever the second half of subdivision (a)(2) from the remainder of section 1170.95, as Molina's approach would require; we must view the statute's words in context, examining the statutory framework as a whole. (In re C.H., supra, 53 Cal.4th at p. 100; Yanez, at p. 458.) Section 1170.95 is neither ambiguous nor internally contradictory. Because Molina was convicted of voluntary manslaughter, not murder, he is ineligible for vacation of his conviction and resentencing.
Indeed, Molina's contention has been rejected. In People v. Cervantes (2020) 44 Cal.App.5th 884, as here, the defendant was charged with murder but pled no contest to voluntary manslaughter. Cervantes made short shrift of the defendant's assertion that he was nonetheless entitled to relief under section 1170.95: "[T]he language of the statute unequivocally applies to murder convictions. There is no reference to the crime of voluntary manslaughter. To be eligible to file a petition under section 1170.95, a defendant must have a first or second degree murder conviction. The plain language of the statute is explicit; its scope is limited to murder convictions." (Cervantes, at p. 887.) This plain reading of the statute, Cervantes explained, is also consistent with the Legislature's stated goals, and did not violate equal protection or substantive due process principles. (Id. at pp. 888-889.)
Similarly, in People v. Flores (2020) 44 Cal.App.5th 985, the defendant was charged with murder but pled to voluntary manslaughter as a lesser included offense. (Id. at p. 989.) Flores held that the express language of section 1170.95 "authorizes only a person who was 'convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated . . . . ' [Citation.]" (Id. at p. 993.) "Through its repeated and exclusive references to murder, the plain language of section 1170.95 limits relief only to qualifying persons who were convicted of murder. Section 1170.95 does not mention, and thus does not provide relief to, persons convicted of manslaughter, which, 'while a lesser included offense of murder, is clearly a separate offense . . . .' [Citation.] Had the Legislature intended to make section 1170.95 available to defendants convicted of manslaughter, it easily could have done so." (Flores, at p. 993; see People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted November 26, 2019, S258234 (Munoz) [Senate Bill 1437 plainly and unambiguously applies only to murder]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted November 13, 2019, S258175.)
Molina argues that an interpretation of section 1170.95 that excludes persons convicted of voluntary manslaughter would produce absurd results. He posits that a less culpable defendant who pled to manslaughter would serve a longer term than a more culpable individual who pled to murder, but obtained relief under section 1170.95. There are several flaws in this hypothesis. First, the assumption that a person who pleads to voluntary manslaughter is always less culpable than one who pleads to murder is of dubious validity; the People may offer, and a defendant may accept, a plea deal for a variety of reasons.
Second, as we recently observed in Munoz, a "successful Senate Bill 1437 petitioner's criminal culpability does not simply evaporate; a meritorious section 1170.95 petition is not a get-out-of-jail free card." Instead, the petitioner is resentenced on the remaining convictions and on the target or underlying felony. (Munoz, supra, 39 Cal.App.5th at pp. 764-765, review granted; § 1170.95, subds. (d)(3), (e).) Thus, it is far from clear that excluding voluntary manslaughter from section 1170.95's reach will always, or typically, result in longer sentences for such defendants. (See Munoz, at pp. 757-758.)
Third, even assuming arguendo that voluntary manslaughter defendants may sometimes be punished more harshly than murder defendants who obtain section 1170.95 relief, this does not trigger application of the absurdity exception. The " 'absurdity exception requires much more than [a] showing that troubling consequences may potentially result if the statute's plain meaning were followed or that a different approach would have been wiser or better. [Citations.] Rather, "[t]o justify departing from a literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them." [Citation.]' " (Munoz, supra, 39 Cal.App.5th at p. 758 & cases cited therein, review granted.)
Indeed, interpreting the statute as Molina suggests would produce anomalous results. Under his construction, a defendant who pled to any crime after being charged with murder—even a nonhomicide offense—would fall within the statutory umbrella and be eligible for resentencing. This would clearly run afoul of the stated legislative intent to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed" on persons who were not the actual killer and did not act with the requisite mental state or level of participation. (Stats. 2018, ch. 1015, § 1, subd. (f), italics added.)
Molina's citations to People v. Page (2017) 3 Cal.5th 1175 and In re R.G. (2019) 35 Cal.App.5th 141, do not assist him. In Page, the court considered whether unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851 was an offense eligible for resentencing under Proposition 47. The court concluded that because one method of violating the offense—taking a vehicle—fell within the statutory definition of theft, such convictions were eligible for resentencing. (Page, at pp. 1180, 1183.) In In re R.G., the court held that section 1170.95's petitioning procedure is available to juveniles, even though Senate Bill 1437 does not expressly reference juveniles and section 1170.95 uses language not generally applicable in juvenile proceedings. (In re R.G., at pp. 144, 146-147.) The court's holding was premised on several considerations specific to the juvenile law. (Id. at pp. 148-151.) Neither of these cases addressed section 1170.95's applicability to voluntary manslaughter, and in neither case did the court interpret a statute in a fashion that directly conflicted with an express statutory provision.
Finally, the rule of lenity does not compel a contrary result. The rule of lenity applies as a tie-breaking principle where two reasonable interpretations of a statute stand in relative equipoise. (People v. Ramirez (2014) 224 Cal.App.4th 1078, 1085.) The rule applies only when a reviewing court can do no more than guess at what the Legislature intended. (Id. at p. 1086; People v. Manzo (2012) 53 Cal.4th 880, 889.) Two equally reasonable interpretations of section 1170.95 do not exist here.
3. Court's purported reliance on information other than the record of conviction
Molina further complains that the court below did not make an independent finding, based on a review of the record or other evidence, that he was convicted of voluntary manslaughter. Instead, he insists, the court merely relied upon the assertions in the People's brief to come to that conclusion. We are not convinced that Molina is correct. The court did not specify what materials it reviewed in order to conclude Molina was convicted of voluntary manslaughter. Certainly, it would not have been difficult to glean from the court file that Molina pled to voluntary manslaughter. The court stated that it had originally relied upon Molina's incorrect assertion in the petition, but "if the court had been in receipt of the entire file and not having to rely solely on the defendant's petition," it would have summarily denied the petition. This suggests that when it ruled, the court did have the full court file before it.
As noted, in making the threshold determination of eligibility, a court may rely upon readily ascertainable materials in the court file and record of conviction. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review granted; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138, review granted.) Certainly, the court cannot simply credit either party's assertions without examining the record. And, to facilitate appellate review, the court should indicate, in a minute order and on the record, what materials it has reviewed and relied upon to make its findings.
Our Supreme Court is currently considering whether superior courts may consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under section 1170.95. (Lewis, supra, 43 Cal.App.5th 1128, review granted.) --------
But, assuming arguendo that the court failed to examine the record, we cannot fathom how remand would be anything but an idle act. This is not a case in which the court may have made a factually erroneous finding. There is no dispute that Molina was convicted of voluntary manslaughter, not murder. He states, "Appellant does not deny that he pled guilty to manslaughter and does not now contend that he pled guilty to first or second degree murder." We have taken judicial notice—at Molina's request—of a 2010 minute order demonstrating that he pled guilty to voluntary manslaughter. Such a minute order is precisely the type of evidence in the record of conviction upon which a summary denial may be based. Given our conclusions that section 1170.95 does not extend to voluntary manslaughter and that the trial court properly denied the petition on that basis, remand would serve no purpose except to waste judicial resources. "The law neither does nor requires idle acts." (Civ. Code, § 3532; People v. Ledbetter (2014) 222 Cal.App.4th 896, 904.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. I concur:
EGERTON, J. LAVIN, J., Concurring:
Defendant Lionel Molina concedes that he was convicted of manslaughter, not murder. And I agree with the majority that Penal Code section 1170.95 does not apply to manslaughter. Since, under the circumstances of this case, the court's failure to appoint counsel to represent defendant was harmless under any standard of prejudice, I would not reach the merits of that issue. Therefore, I respectfully concur.
LAVIN, J.